The City of Chicago v. Stearns
| Decision Date | 31 March 1883 |
| Citation | 1882 WL 14355,105 Ill. 554 |
| Parties | THE CITY OF CHICAGOv.DEBORAH STEARNS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.
Mr. CLARENCE A. KNIGHT, for the appellant:
A city is not always liable for an injury caused by a defective sidewalk. Notice of the defect must be shown, or circumstances from which it may be inferred. ( City of Peru v. French, 55 Ill. 318; City of Chicago v. Murphy, 84 Id. 224.) The instruction for the plaintiff assumes, or would lead the jury to believe, that no such notice was necessary.
Again, the latter part of the instruction does not correctly state the rule of comparative negligence. This court has frequently held that it is the duty of a person walking on the sidewalk to use his eyes to direct his footsteps, and failing to do so is such negligence as to preclude a recovery. Village of Kewanee v. Depew, 80 Ill. 119; City of Quincy v. Barker, 81 Id. 300.
The plaintiff has not claimed, in her declaration, that the sidewalk was defectively constructed, and hence it was improper in the court to place before the jury that question in its modification of the defendant's instruction. It was misleading to do so. Chicago and Alton R. R. Co. v. Kellam, 92 Ill. 245.
Mr. SIDNEY THOMAS, for the appellee:
The instruction complained of does not ignore the question of notice to the city of the defect in the walk. Reasonable diligence does not exclude the right to notice of the defect and opportunity to repair, and, in short, all that the argument claims. The word “permit,” in the instruction, implies that the party permitting acts understandingly, and permission implies knowledge, and knowledge is notice. The case was not tried on the theory of a defect in the original construction of the walk, and the objection urged could not have affected the verdict in the least.
This was an action brought by Deborah Stearns, in the Superior Court of Cook county, against the city of Chicago, to recover for injuries received from a fall on and through a defective sidewalk, on La Salle street, on the 12th day of June, 1878. On a trial before a jury the plaintiff recovered a judgment of $1500, which, on appeal to the Appellate Court, was affirmed.
A single question has been raised in regard to the admission of evidence. Mrs. Beck, a witness for plaintiff, was asked if she knew the condition of the sidewalk in the month of June, 1878. To this question a general objection was made by the defendant, and overruled by the court. We perceive no error in the ruling. It was proper to prove the condition of the walk in the month of June, prior to the time of the injury, and if the defendant desired to object to evidence in regard to the condition of the walk after the accident occurred, the objection should have been more definite, and confined to that particular time. As it was not, we think the ruling of the court was not erroneous.
The next question presented by counsel for appellant involves the decision of the court on the instructions. At the request of the plaintiff the court instructed the jury as follows:
“1. It was the duty of the defendant to use reasonable diligence to keep the sidewalk in question in a reasonably safe condition, and if the jury believe, from the evidence, that the defendant failed to perform such duty, and that by reason of its negligence in that regard the said sidewalk was permitted to remain out of repair and in a dangerous condition, by reason whereof the plaintiff, while exercising reasonable care on her part, received the injury complained of, then the defendant is liable. And the court further instructs the jury, that if they find, from the evidence, that the plaintiff was herself guilty of some negligence, but that the defendant was guilty of gross negligence contributing to such injury, and that the plaintiff's negligence was slight as compared with the negligence of the defendant, still she may be entitled to recover.
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